Bills Digest no. 78 2006–07

WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.

The national classification scheme is a
cooperative arrangement between the Commonwealth, states and
territories established by the Classification (Publications,
Films and Computer Games) Act 1995 (the Classification Act).
The Classification Act provides that the Classification Board
classifies films (including videos and DVDs), computer games and
certain publications. As part of the national classification
scheme, each state and territory has enacted classification
enforcement legislation that complements the Commonwealth
Classification Act. State and territory classification legislation
prescribes penalties for classification offences and provides for
enforcement of classification decisions in the particular
jurisdictions.(1)

The National Classification
Code exists as a separate document authorised by the
Classification Act. It contains descriptions about the products
which would fall within the classification types. For example, the
Code sets out the level of depiction of sex and violence and other
issues which would cause a film to be classified as G, PG, M etc.
The criteria for classification are also contained in the
Guidelines for the Classification of Films and Computer
Games and the Guidelines for the Classification of
Publications, the latest versions of which came into operation
on 26 May 2005.

The Classification Act establishes the
Classification Board and the Classification Review Board, setting
out the membership and powers of each entity.

The
Classification Board is an independent statutory
body consisting of the Director, Deputy Director, Senior
Classifiers and other members. The Classification Board classifies
films (including videos and DVDs), computer games and certain
publications. The Classification Board also classifies Internet
content referred by the Australian Communications and Media
Authority and provides advice to the Australian Customs Service on
the importation of publications, films and computer games.

The Act states that the maximum number of
positions permitted on the Classification Board is not more than
20.

The Director of the Classification Board is
currently also the Chief Executive of the OFLC and the
Classification Review Board.

The
Classification Review Board (the Review Board) is
an independent statutory body established to review certain
decisions of the Classification Board. Although the Director of the
Classification Board is Chief Executive of the Classification
Review Board for the purposes of the Financial Management and
Accountability Act 1997 (FMA Act), the Classification Review
Board is totally independent in its classification decision-making.
The Classification Act provides that the Review Board is to consist
of a Convenor, Deputy Convenor, and at least three, but not more
than eight other members.

In 2005 06, the
Classification Board made 8,830 classification decisions of which
15 were reviewed by the Review Board. Of the 15 reviews completed,
the Review Board lowered the classification of that reached by the
Classification Board on five occasions. On nine occasions the
Review Board made the same classification decision as the
Classification Board. In one matter, regarding the classification
of a computer game, the Review Board determined a higher
classification. On ten occasions, the Review Board changed the
consumer advice recommended by the Classification
Board.(2)

The Act requires that in appointing members to
both Boards, regard be given to the desirability of ensuring that
the membership of the Boards is broadly representative of the
Australian community. It also requires the Attorney-General to
consult all states and territories regarding proposed appointments.
Appointments to the Boards are generally for three to four years
and membership cannot exceed seven years in total.

The Office of Film and Literature
Classification, originally established in 1988,(3) is a
prescribed agency for the purposes of the FMA Act and a statutory
agency for the purposes of the Public Service Act 1999.
The Classification Board and the Classification Review Board are
supported administratively by Australian Public Service staff in
the OFLC. In addition, the OFLC provides advice and support to the
Attorney-General, state and territory governments, industry,
law-enforcement bodies and members of the public.

The OFLC does not make classification
decisions, since these are the function of the Classification Board
and the Classification Review Board.

At the end of the
2005-06 reporting period, there were a total of 41 Australian
Public Service staff and 16 Classification Board
members.(4)

On 23 February 2006, the Attorney-General
announced that under new administrative arrangements, the
Classification Board and Classification Review Board would be
separated from the other functions of the OFLC and that the OFLC s
policy and administrative functions would be folded into the
Attorney-General s Department.(5)

Effective 1 July 2006, all policy staff and
functions would be transferred from the OFLC to the
Attorney-General s Department. The remaining functions including
business and financial management will be incorporated into the
Attorney-General s Department by 1 July 2007. At the conclusion of
the transition period, the OFLC will no longer exist as a separate
agency.(6)

The Attorney-General stated that the
independent classification decision-making roles of the two boards
would remain unchanged. Under the new arrangements the Boards would
be serviced by dedicated and co-located secretariat support
provided by the Attorney-General s Department.(7).

Schedule 1 of the Bill
proposes the necessary legislative amendments to implement these
administrative arrangements.

The rationale for these changes is not clear
from either the Attorney-General s media release or in the Second
Reading speech and Explanatory Memorandum for the Bill. The OFLC
Annual Report for 2005 06 does however state that the new
administrative arrangements are consistent with the recommendations
of the Uhrig Report, the Review of Corporate Governance of
Statutory Authorities and Office Holders, and Government
policy to reduce the number of government agencies and return
policy functions to departments.(8)

The CPSU published an issues paper on the new
administrative changes for classification announced by the
Attorney-General. The paper is critical of the changes, raising
concerns about the lack of consultation with stakeholders and
questioning the rationale for the changes. The CPSU also argued
that the changes could threaten the independence of the
classification and censorship process. The paper states:

Advice on classification and censorship will now be provided to
the Attorney-General from Departmental staff without the oversight
of the Classification Board. This removal of independent oversight
may provide greater potential for classification and censorship to
be influenced by political considerations.

The Boards will now be serviced by a secretariat from the
Attorney-General s Department, instead of by the OFLC as an
arms-length government agency with greater independence.

Both Boards rely on policy advice and support
from OFLC staff. This policy advice and support will now be
provided by Attorney-General s Department staff located in
Canberra.

Classification policy will now be developed in isolation from
both Boards, by the Attorney-General s Department. Board members
are selected to be broadly representative of the Australian
Community.

There are concerns that this may result in the politicisation of
classification and policy decisions. For example, the National
Classification Code and the guidelines that govern classification
and censorship decisions made by the Boards are developed in
consultation with the Boards & the community by the OFLC Policy
Unit. This will now be done by the Attorney-General s Department,
in concert with the Minister of the day.

This is likely to lead to classification policy being developed
in isolation from significant stakeholders, including the industry
and the Australian community.(9)

The Attorney-General, the Hon P. Ruddock,
defended the decision, saying that union concerns regarding the new
administrative arrangements for the national classification scheme
were without substance and the impact of the changes had been
misrepresented. He noted that locating the policy and
administrative functions of the OFLC within the Attorney-General s
Department would ensure that the Boards remain, and are more
clearly seen to be, independent in their
decision-making.(10)

At Estimates hearings of the Senate Legal and
Constitutional Legislation Committee on 24 May 2006, ALP Senator
Joe Ludwig asked questions of officers from the Attorney-General s
Department about the rationale for the abolition of the OFLC and
its potential impact on the independence of the classification
scheme.

Senator Ludwig s questions revealed that while
the decision flowed from the Uhrig Review,(11) the
decision was made by the Government without consultation with
relevant stakeholders including the OFLC and the states and
territories. Senator Ludwig raised concerns about the new
administrative arrangements, suggesting they would result in the
Classification Board and Review Board losing an important source of
policy formulation to inform themselves on classification issues.
In his discussions with Mr I. Anderson, First Assistant Secretary,
Legal Services and Native Title Division, Senator Ludwig
stated:

The director [of the Classification Board] will need support
through direct staff to provide that public face to explain things
to the community. If secretariat support resides in the department
under your control, then it is a significant difference from what
currently exists where he can, or she can in future, exercise their
ability to task their employees as a separate body. If you cannot
see the difference, I think everybody else can.

[ ]

they will not be able to employ the staff
directly or decide on the skill sets that they require. They will
be all decisions that you will make.

Mr Anderson, in response stated:

There is scope for delegations of powers to the
director. That is a matter that we are still considering. I cannot
actually say anything further than that.(12)

Schedule 1 proposes the
necessary legislative amendments to reflect the administrative
arrangements, announced on 23 February 2006, that the
Classification Board and Classification Review Board would be
separated from the other functions of the OFLC and that the OFLC s
policy and administrative functions would be folded into the
Attorney-General s Department.

The OFLC does not regulate television, radio
or the Internet. Rather, the Broadcasting Services Act establishes
a co-regulatory scheme for broadcast services relying on codes of
practice developed by industry and registered with the Australian
Communications and Media Authority. For the purposes of classifying
films screened on television, the Broadcasting Services Act
requires that codes of practice apply the film classification
system administered by the OFLC.(14)Items 1
2 are consequential amendments that change references in
the Broadcasting Services Act from compliance with the film
classification system administered by the Office of Film and
Literature Classification to that provided for by the
Classification (Publications, Films and Computer Games) Act
1995 . Item 3 is also consequential, required
as a result of the amendments to the changed staffing arrangements
for the Classification Board and Review Board.(15)

Subsection 17(5) of the Classification Act
provides that the Director of the Classification Board may
authorise a person who has been trained by the OFLC to assess and
make recommendations on the likely classification of a computer
game. Item 4 replaces the reference to training by
the Office of Film and Literature Classification with training
approved by the Director .

Subsections 52(2) and (3) give the Director of
the Classification Board certain powers in relation to financial
matters. Item 6 repeals these provisions, as the
Attorney-General s Department will manage the financial affairs of
the Board and the Review Board. Item 5 is
consequential on this repeal.

Division 3 of Part 6 of the
Classification Act concerns the structure and staffing of the OFLC
as a Statutory Agency for the purpose of the Public Service Act.
Item 7 repeals the Division and effectively
abolishes the OFLC. New section 88A, inserted by
item 13 sets out the new staffing arrangements. It
provides that staff assisting the Classification Board and the
Review Board are to be public servants made available by the
Secretary of the Attorney-General s Department.

Existing section 67 requires the Director of
the Classification Board to provide the Minister with a report of
the management of the administrative affairs of the Board and
audited financial statements for the Board and Review Board.
Item 9 repeals and replaces section 67 so as to
remove the financial reporting aspects of the section. Under
new section 67, the Director will be required to
give to the Minister a report of the management of the
administrative affairs of the Classification Board during the
financial year. The report is to be laid before each House of the
Parliament within 15 sitting days of that House after its receipt
by the Minister.

Items 10 12 repeal sections
68, 69 and 70 respectively. These sections concern obligations to
keep proper financial accounts and records of the Classification
Board and Review Board, provide access to them, and have them
audited by the Auditor-General. They are to be repealed because the
Attorney-General s Department will assume responsibility for the
financial administration of the Classification Board and Review
Board activities.

Items 14 and
15 make amendments to the Freedom of Information
Act, as a consequence of the integration of the
OFLC into the Attorney-General s Department. They replace
references to the Office of Film and Literature Classification with
references to the Attorney-General s Department .

Part 2 of Schedule 1 contains transitional and
saving provisions flowing from the Part 1 amendments.

The Explanatory Memorandum states that the
measures in Schedule 2 are ancillary to the
decision to move the OFLC into the Attorney-General s Department.
It states:

The Act currently confers administrative and
financial powers of both the Board and the Review Board on the
Director of the Board who is concurrently the Director of the
Office of Film and Literature Classification. These amendments will
delineate powers and responsibilities to implement the full
independence of the Board and the Review Board and remove the
anomaly whereby the Review Board is reliant on the Director of the
Board for some of its administrative
functions.(16)

In essence, most of the amendments in Schedule
2 are concerned with giving the Convenor of the Review Board and
the Director of the Classification Board the same administrative
functions in relation to their respective Boards.

Item 1 amends section 4 to
enable the Convenor (in addition to the Classification Board, the
Review Board and the Director) to exercise powers and perform
functions relating to classification that are conferred under an
arrangement between the Commonwealth and the states and
territories.

One of the roles of the Classification Board
is to classify films, publication and computer games for
enforcement agencies, such as state and territory police. In 2004,
amendments were made to the Classification Act to ensure the
validity of classification decisions made by the Board and the
Review Board where those decisions were made on the basis of
defective applications lodged by law enforcement agencies (sections
22C and section 44B). The 2004 amendments referred to decisions
made by the Classification Board, the Review Board and the
Director, but failed to refer to decisions made by the Convenor.
Items 2 and 8 amend sections 22C(2) and 44(B)(2)
to correct this anomaly.

Under subsection 25(1), the Director is
required to issue a classification certificate for material
classified by the Classification Board. Item 3
amends this section so that the Convenor will also be required to
issue a certificate for material classified by the Review Board.
Where the Convenor issues a certificate for material that had
previously been classified by the Director, the Director s
certificate is revoked when the Convenor gives the applicant
written notice of the Review Board s decision (new
subsection 25(1B)).

Section 26 requires the Director to give
written notice of a decision of the Classification Board to the
applicant or in some cases other interested persons (such as a
publisher). Section 26 also requires the Convenor
to give notice of Review Board decisions to the applicant and
item 4 will extend the Convenor s notice
requirements to other interested persons.

Section 27 deals with applications to the
Director of the Classification Board for copies of classification
certificates or notices of decisions. Items 5 and
6 amend section 27 to provide separate provisions
in similar terms for applications to each of the Director and the
Convenor for copies of classification certificates or notices of
decisions made by the respective Boards.

Item 7 amends subsection
44A(1) to replace the Director with the Convenor as the person who
may request copies of a particular publication, film or computer
game for the purpose of the Review Board conducting a review.
Item 9 is a consequential amendment resulting from
this change.

Section 59 deals with the delegation powers of
the Director. Items 10, 11 and 12 amend section 59
to reflect the new administrative arrangements abolishing the OFLC.
Under new subsection 59(2) the Director may
delegate all or any of the Classification Board s powers under the
Act or regulations to staff to be made public servants by the
Secretary of the Attorney-General s Department as mentioned in new
section 88A. Item 15 inserts new section
79A, the equivalent delegation provision affecting the
Convenor of the Review Board.

Item 14 inserts new
section 77A. It provides that the Convenor may exercise
powers conferred on him or her by a law of a state or the Northern
Territory that corresponds to section 44A. Section 44A, once
amended,(17) will provide that the Convenor may require
the relevant person to provide a copy of a publication, film or
computer game for the purpose of the Review Board conducting a
review of that material. The Explanatory Memorandum explains that
the state and Northern Territory legislation confers the equivalent
power for material in each jurisdiction and that the states and the
Northern Territory will be making relevant changes to their
complementary legislation to change Director to Convenor to come
into effect in conjunction with the commencement of this
provision.(18)

Items 13 and
26 are linked. They relocate and
expand the existing provision to provide that judicial or other
proceedings relating to anything done by the Convenor as well as by
the Director may be brought by or against the Commonwealth
(new section 92A).

Section 87 provides that applications may be
made to the Director of the Classification Board for certificates
regarding action taken or not taken under the Act. Items
17 and 18 expand and amend section 87 so
as to include separate provisions for applications to the Convenor
for certificates (new subsections 87(4), (5) and
(6)) as well as applications to the Director.

Section 87A provides the timeframe within
which the Classification Board must make a decision on an
application for a review of a decision. Item 19
provides an equivalent provision in regard to the timeframe for the
Review Board in making decisions (new section
87B).

Item 20 amends section 89 in
order to include the Convenor as well as the Director in the
service-of-notice arrangements under the Act.

Items 21, 22, 23 and 24 are
linked. They amend section 91 to include separate
provisions in similar terms for the Convenor as well as the
Director to waive fees payable under the Act in respect of
applications to the Classification Board or Director, and to the
Review Board or the Convenor (subsections 91(1) and
91(1A)). The Director or Convenor may only waive payment
in accordance with written principles determined by the Minister in
consultation with the participating Ministers (new
subsection 91(1B). Under existing arrangements the
principles are determined by the Director and approved by the
Minister in consultation with the state and territory
Ministers.

Items 16 and
25 are linked. They amend and relocate the
provision that currently provides for application to the
Administrative Appeals Tribunal for review of a decision of the
Director to waive all or part of the fees payable under section 91.
Under new subsection 91(5) applications may be
made to the AAT for review of decisions of the Convenor as well as
the Director (item 25).

Part 2 of Schedule 2 contains
transitional and saving provisions flowing from the Part 1
amendments.

Schedule 3 proposes
amendments to introduce an additional-content assessment scheme.
The scheme provides that a person appropriately trained and
authorised by the Director is able to make recommendations to the
Classification Board about the classification and consumer advice
for additional content released with already classified or exempt
films. Under the scheme the Board will retain responsibility
for classifying the film, but its consideration will be assisted by
the assessment of an additional-content assessor. In practical
terms, the scheme would remove the requirement for reclassification
of a film where a new release is made with additional content, for
example, when a feature movie is released with extra material on a
storage device such as a DVD.

Central to the scheme is the definition of
additional content in either a classified or exempt film.
Additional content includes but is not limited to:

additional scenes for the film (such as an
alternative ending or deleted scenes)

a film of the making of the film

interviews with, and commentaries by,
directors, actors and others involved in the making of the film
(item 1).

The Explanatory Memorandum states that
additional content might also include featurettes or short films
which take their meaning from the classified or exempt film but
would not be marketable independently.(19) Additional
content does not include a work (as defined) so therefore does not
include:

audio-visual productions that appear to be both
self-contained and produced for viewing as a distinct unit

television programmes, and

computer games that are produced for playing
independently.(20)

Regulations may prescribe other material which
is or is not additional content .

Item 6 is the central
provision in relation to the additional-content assessment scheme.
It provides special rules for the classification of:

films which have already been classified but
have additional content, or

films which have been deemed exempt films but
have additional content (new subsection
14(5)).

If a film has
already been classified at an R rating or lower, or if a film is
exempt from classification,(21) then an applicant may
submit any additional content belonging to that film and use the
additional-content assessment scheme. The scheme allows an
applicant to submit an assessment of the additional content
prepared by an additional-content assessor. The assessment
must:

describe and report on the impact of any
classifiable elements in the additional content that are at the
same or higher level as the already classified film, and

include a recommendation of the classification
and appropriate consumer advice and any other matter prescribed in
the regulations (new subsection 14(6)).

The Classification Board may then classify the
film based on this recommendation. In the event the Board or
Director disagrees with the recommended classification, the
applicant is to be given 14 days to provide additional submissions
before the Board makes a decision.

This scheme cannot be used by a person who has
been given notice under section 22H by the Director because of the
poor quality of assessments provided with previous applications
(newparagraph 14(5)(c)).

New section 21AA provides
that the Classification Board must revoke the classification of a
film containing additional content in specified circumstances which
demonstrate that the assessment on which the classification was
based was highly unreliable. In particular the Board
must revoke the classification if satisfied the additional
content contains elements that:

were not brought to the Classification Board s
attention, or

were misleading, incorrect or grossly
inadequate, and

if the Board had been aware of these matters
before the classification was made, it would have given the film a
different classification.

Item 10 inserts a new
Division 2A that deals with assessors for the additional-content
assessment scheme.

New section 22D provides that
the Director may authorise a person to prepare assessments of
additional content if they have undertaken the appropriate training
and if they are not subject to a notice issued by the Director
under new section 22F barring them from being an additional-content
assessor.

The Director may revoke an additional-content
assessor s authorisation if satisfied that:

the assessor has prepared an assessment of
additional content but not revealed its classifiable elements as
required by subsection 14(6)

the assessor s assessment of the classifiable
elements was misleading, incorrect or
grossly inadequate

the assessor has not completed further training
as requested by the Director, or

the assessor has prepared two or more
assessments which contain misleading,
incorrect or grossly inadequate information (new section
22E).

The regulations may also prescribe other
conditions for revocation.

New section 22F provides
stronger sanctions that can be used against assessors. The Director
may effectively bar a person from being an assessor for a period of
up to three years if satisfied of one or more conditions.
They are:

a classification of a film, which was
classified taking into account an assessment by the person of its
additional content, has been revoked under section 21AA, or

the person has prepared two or more assessments
which contain misleading, incorrect or grossly inadequate
information, or

the assessor has met another condition
prescribed by the regulations.

The Explanatory Memorandum states that the
sanctions to either revoke or bar an assessor as set out in new
sections 22E and 22F are permissive powers, and there is no
requirement that a person be barred if a condition s minimum
trigger point is satisfied. At all times, the Director will be
expected to exercise discretion and consider the nature and
severity of the person s action in the circumstances.
(22)

New section 22H provides
sanctions for the unacceptable use of the additional-content
assessment scheme by applicants (such as a distributor, publisher
or other industry applicant). The Director can effectively
bar someone from using the scheme for a period of up to three
years. Section 22H empowers the Director to issue a
barring notice on certain conditions, namely where:

at least two assessments contained misleading,
incorrect or grossly inadequate information have been submitted,
and

as a result of those assessments, the Director
revoked the authorisation of the assessors who prepared them.

As stated above, new
paragraph 14(5)(c) prevents an applicant from
submitting an assessment of additional content with an application
for classification of a film if a notice under section 22H is in
force against that person.

Regulations may prescribe circumstances in
which an assessment is taken to contain misleading, incorrect or
grossly inadequate information, however such regulations would in
no way limit the meaning of these terms (new subsection
93(2)).

Decisions by the Director to issue a notice
barring an applicant from using the scheme are also reviewable by
the AAT (new section 22J).

New section 14A clarifies
that, when several previously classified films are brought together
for distribution as a single package, the product does not require
classification simply because of the fact of compilation.

Section 21 provides that where classified
films are modified, they are considered declassified and require
reclassification. Item 8 amends subsection 21(2)
so that the addition of navigation functions, or the addition of
descriptions or translations to already classified films are not
considered modifications requiring reclassification under section
21. The Explanatory Memorandum provides some detail of the
different types of navigation functions,(23) and states
their purpose is to add functionality and usability without
fundamentally changing or adding to the content of the film per
se.(24)

Descriptions or translations include
subtitles, captions, dubbing and audio descriptions. The
Explanatory Memorandum states that they do not provide new content
per se but allow the audio and visual elements of an already
classified film to be accessed by those who are unable to otherwise
access them.(25)New paragraph
21(2)(d)(ii) provides a safeguard to require descriptions
or translations to be accurate in rendition they must not provide a
different meaning or nuance which would be likely to cause the film
to receive a higher classification.

The miscellaneous amendments contained in
Schedule 4 include the following.

Item 3 changes the
requirement for the Classification Board to refuse to approve an
advertisement if it depicts in an offensive way a person who is or
looks like a child under 16 to a person who appears to be a child
under 18.

Item 5 allow regulations to
prescribe a higher number of Board members. The Classification Act
currently allows for up to 20 Classification Board members and up
to eight Review Board members.

Items 10 12 transfer from the
Director to the Attorney-General, the power to determine markings
to be displayed about classified material.

Concluding comments

The new procedures in the Bill proposing to
streamline some aspects of film classification, seem appropriate in
light of changing technology.

In regard to the abolition of the OFLC,
questions have been raised about the lack of consultation by the
Government in making this decision and about the possible impact it
may have on the independence of the National Classification
Scheme.

On a practical level, the new arrangements may
create logistical problems with the two Boards continuing to work
in Sydney while their secretariat support will operate out of the
Attorney-General s Department in Canberra. On the other hand, as
the Uhrig Review noted, moving a small body (such as the OFLC) back
into a larger department may result in more effective
administration.

Undoubtedly the future is one of
administrative change for the national classification system. Des
Clark, outgoing Director of the OFLC, reflecting on the changes,
stated that the Australian Government and the state and territory
Governments have received high-quality support services from the
OFLC. Mr Clark concluded:

Going forward, the Attorney-General s Department
faces the challenge of ensuring that standards of service and good
relations are maintained for the benefit of consumers of
entertainment media and the businesses that submit material for
classification around the country.(26)

Office of Film and Literature Classification,
Annual Report for the Classification Board and the Classification
Review Board, 2005 2006, pp. 9 10.

ibid., p. 93.

The OFLC was created on 11 April 1988 as an
amalgamation within the Attorney-General's Department of the Film
Censorship Board and other censorship offices of the department.
Until the Office was created, publications were submitted for
censorship first to the Customs Department and then to the
Attorney-General s Department. The OFLC was established to classify
(rather than censor) publications on a more consistent basis than
had been done in the past by various Department offices and State
branches. In 1996, the OFLC was established as a statutory
authority under subsection 54(2) of the Classification Act. Since
its establishment, the Office has been located in Sydney.

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